HHS Rulemaking: Reproductive Health Care

In April 2023, the Department of Health and Human Services Office of Civil Rights (HHS OCR) initiated a Notice of Proposed Rulemaking (NPRM) “To Support Reproductive Health Care Privacy” and “modify existing standards by prohibiting uses and disclosures of [Protected Health Information (PHI)] for criminal, civil, or administrative investigations or proceedings against individuals, covered entities or their business associates (collectively, “regulated entities”), or other persons for seeking, obtaining, providing, or facilitating reproductive health care that is lawful under the circumstances in which it is provided.”

The NPRM emphasized that “developments in the legal environment” – with a focus on the Supreme Court’s decision in Dobbs – “are eroding individuals’ trust in the health care system, ”indicating that the Dobbs decision “makes it more likely than before that individuals’ PHI may be disclosed in ways that cause harm to the interests that HIPAA seeks to protect.” HHS OCR released a preliminary version of the updated rule on April 22, 2024, and the final rule was published on April 26, 2024. The final rule will take effect on June 25, 2024.